Tuesday, June 21, 2011

30 Minutes and Counting

The Times, the other day, ran an article about LawyerUP, a service designed to get the newly accused or arrested a lawyer in just 15 minutes. You know, in half the time that Domino's no longer guarantees it will get you a pizza. Carolyn Elefant thought it was an idea worth taking seriously. Scott Greenfield and Antonin Pribetic not so much.

Me, I'd endorse any plan that actually got people competent lawyers when they needed them. LawyerUp doesn't fit that bill, which is too bad, but not particularly surprising.

Frankly, for most of those who need a criminal defense lawyer, the lawyer is going to be a public defender or someone serving a variation on that role (court-appointed counsel, contract attorney, conflict attorney, whatever the local vairant). That's because most people who need criminal defense can't afford a lawyer. (In Ohio it's roughly 75%, or was a few years ago when I last looked at the numbers.) And that raises a related but different problem.

Because, you know, and with exceptions, PDs are seriously overworked and underpaid.

I've dipped into those issues before. (See, for instance, discussion of the situation in NewYork, Missouri, Colorado, and in a related but slightly different vein Louisiana.) Today we turn our attention to the Evergreen Stateand the euphonously named Skagit (pronounce that with a soft "g," please) County.

Richard Sybrandy and Morgan Witt are the Skagit public defenders and they have a lot of public defending to do. Sybrandy, at least, represents about 1,000 alleged misdemeanants a year. That's more than double the case load the state bar says is reasonable. But for Sybrandy that's only about half his docket since he also represents each year another 1,000 or so alleged criminals who retain him. (I don't have figures for Witt, though I'd assume they're similar, because he decided that being interviewed by the Seattle Times's Jonathan Martin for this article wasn't on his to-do list.)

Sybrandy thinks that caseload is too high. (No shit.)

But not so high that he doesn't do a spectacular job for each of his 2,000 clients a year. Just listen to him.

"I've been frustrated to the point of tears" when faced with five trials in a single week, he said. But he vigorously disputed the lawsuit's allegations that he hasn't returned clients' phone calls or investigated their cases. "I've worked really hard for an outstanding reputation," he said.

Wait, lawsuit? What lawsuit?

Oh, the class action case brought against the Skagit County PDs (that's Sybrandy and Witt) for providing ineffective assistance of counsel because their case load is just too damn high. Because, if you do the math . . . . No, don't bother, it's been done.

Seattle's municipal court limits public defenders to 380 cases, but most other cities don't. The caseload limits make sense, said Bob Boruchowitz, a Seattle University law professor and former director of a King County public-defense organization.
"There are 1,600 to 1,800 billable hours a year, so if you are doing 900 cases, you've got 2 hours per case. If you are doing 900 cases part time, you've got one hour" or less, he said. "When the bulk of your cases are resolved in a half-hour or hour you are not being able to do the work that needs to be done to represent someone."
. . .
Based on documents from the two cities, submitted with the lawsuit, Sybrandy and the other contracted public defender, Morgan Witt, document spending 30 minutes to one hour per case. Defendants have complained to the cities that the attorneys do not return phone calls, and Sybrandy and Witt combined visited the Skagit County jail only six times in 2010, seeing seven clients.

Not shockingly, I suppose, Skagit County found a whore lawyer who would defend the 30 minute/case approach as perfectly reasonable.

Caseload limits in municipal courts, however, ignore the fact that many of those cases, such as suspended-license infractions, are simple and can be handled expeditiously, said Andrew Cooley, a Seattle attorney representing Mount Vernon and Burlington in the lawsuit.

Sure. Quick look. Quick plea. Maybe do a dozen in an hour. Maybe two dozen. Or three.

Witt did not respond to a call, but Sybrandy said during an interview this week that he rarely visits the jail because his clients are rarely there. He said he has not hired an investigator to look into the facts of a case for at least two years but accused Marshall, the attorney pressing the class-action lawsuit, of being ignorant of criminal law.
"The question is, who is Richard Sybrandy," Sybrandy said. "Why don't we call 5,000 of Richard Sybrandy's past clients and see how many say, gosh, Richard Sybrandy saved my butt. ... For someone who doesn't know what he's talking about to say otherwise is really disgusting."

There are a few things to say here assuming that Martin's story is essentially accurate.

Skagit County has been getting away with inadequately funding public defense, and providing inadequate defense, for too long.

Toby Marshall, a Seattle lawyer whose firm filed the lawsuit, said based on the volume of criminal cases, Mount Vernon and Burlington need five attorneys, not two, and need to spend about $300,000, not the current $180,000.
"The Constitution does not say you get an attorney if the city can afford it. The Constitution says you have a right to counsel, period," he said.

Sybrandy is either delusional or an idiot if he actually believes that he can effectively defend a couple of thousand people a year - or that 30 minutes is all the typical misdemeanor case needs. Clients have to be interviewed. Reports have to be examined. Cases have to be investigated. Phone calls to clients and cops and prosecutors. Visits to the scene. Examine. Consider. Sometimes for godssake go to trial.

Sure, there's often not a lot to investigate and probably not a lot of witnesses when the charge is driving on a suspended license. But there are times when the police only discover that as a result of an unconstitutional traffic stop. You don't no if you don't look into it. And maybe file a motion. And maybe have a hearing. And maybe do some research and file a post-hearing memorandum. Or maybe you just plead the case out because at 30 minutes per, that's all you can do. And even that may be a stretch what with the client having all those legal rights to waive.

The truth is that Sybrandy (and I'm assuming Witt), knows perfectly well that all he's doing is processing cases and maybe plucking one a month that he really makes some effort to defend. What else can he do?

That he can't/won't admit that to the press isn't surprising. It's hard to own up to however many years of not really doing the job you're inadequately paid to do. Even when it's impossible to do.

But see, here's the question. Do you go public with the denials or keep your head down because you know they're right and if the lawsuit succeeds it inures, ultimately, to your benefit? You get to do the job for which you went to law school. The job which, presumably, you want to do properly.

Which takes you to the question of who those couple of thousand cases are really about. The clients or the lawyer?

I've never met Sybrandy or Witt. I never even heard of them before today. Hell, I never heard of Skagit County before today. I don't know if Jonathan Martin got even one fact right in his article. (I searched around but couldn't find any documents from the lawsuit on line.) So I don't know what's true.

Here's what I know: It's never about us. It's always about the client. Even when we have to take the heat. And even if we're underpaid and overworked.

There are PDs who've refused to take more cases because they can't do the job properly with the caseloads and resources they're given. There are lawyers who have stood up and said, "No more."

1 comment:

This just makes me sick. There is absolutely no doubt that these two are consistently ineffective. Instead of saying "no shit, we don't have the resources", we're treated to how wonderful they are? Nonsense.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.